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Bennett v. Guillory

California Court of Appeals, Fourth District, Third Division
Jul 10, 2008
No. G039651 (Cal. Ct. App. Jul. 10, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 07CC00836, Frederick Paul Horn, Judge.

Stephen H. Bennett, in pro. per., for Plaintiff and Appellant.

Benjamin P. de Mayo, County Counsel, and Laurie A. Shade, Deputy County Counsel for Defendant and Respondent.


OPINION

FYBEL, J.

INTRODUCTION

“Proposition 13, adopted in 1978, limits the amount that the assessed value of real property may be increased to reflect increases in the property’s actual market value. When ownership of the property changes, however, the property may be reassessed at its current market value. [Citation.] Changing the assessed value of real property to its current market value can result in a substantial increase in the tax on that property. Thus, determining whether and when a change of ownership has occurred can have significant tax consequences.” (Auerbach v. Assessment Appeals Bd. No. 1 (2006) 39 Cal.4th 153, 157.) Section 60 of the Revenue and Taxation Code (section 60) defines the phrase “change in ownership” for purposes of Proposition 13 as “a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest.” (See Auerbach v. Assessment Appeals Bd. No. 1, supra, 39 Cal.4th at pp. 160-161.)

Plaintiff Stephen H. Bennett is a certified public accountant practicing in Orange County. He filed a first amended petition for writ of mandate against defendant Webster Guillory, the Orange County Assessor (Assessor), in which he alleged the Assessor failed to apply the definition of “change in ownership” found in section 60 before reassessing property belonging to one of his clients. The petition further alleged Bennett’s client successfully appealed the Assessor’s reassessment of the property.

The first amended petition contained five “causes of action” in which Bennett sought (1) a ruling that section 60 is good law; (2) a ruling that real property held in trust is only reassessable upon the death of a trust beneficiary if the conditions of section 60 are satisfied; (3) an order compelling the Assessor to apply section 60 before reassessing real property; (4) an order compelling the Assessor to reconsider unspecified past escape assessments he has issued where one or more of the three conditions of section 60 were not met at the time of transfer; and (5) an order compelling the Assessor to reverse escape assessments he has issued where he was unable to make a determination that section 60 was satisfied at the time of the transfer.

The trial court sustained the Assessor’s demurrer to the first amended petition for writ of mandate without leave to amend. We affirm. As discussed in detail post, the first amended petition failed to allege facts sufficient to show a basis for issuing a writ or to show Bennett had standing. The trial court did not err by sustaining the demurrer without leave to amend because Bennett did not seek leave to amend the first amended petition in the trial court; Bennett also does not contend he should be granted leave to amend on appeal.

BACKGROUND

I.

Bennett Files Verified Petition for Writ of Mandate; Trial Court Sustains Assessor’s Demurrer with Leave to Amend.

In May 2007, Bennett filed a verified petition for writ of mandate, under Code of Civil Procedure section 1085, seeking to compel the Assessor to issue a written ruling under Revenue and Taxation Code section 5909. In the petition, Bennett alleged he had served a formal request for a ruling within the meaning of Revenue and Taxation Code section 5909 on the issue whether “a trustee is legally obligated to notify the County Assessor when a trust beneficiary has died only when the death results in a change of ownership under Revenue & Taxation Code Section 60.” He further alleged the Assessor failed to respond to his request. Bennett sought a writ of mandamus compelling the Assessor “to either issue the ruling request [he had] sought under the Property Taxpayers’ Bill of Rights or to show cause why he has not done so.”

The Assessor demurred to the petition on the ground it failed to state a cause of action as the Assessor did not have a mandatory duty under Revenue and Taxation Code section 5909 to issue a written ruling in response to Bennett’s request. The trial court sustained the Assessor’s demurrer to the petition with leave to amend.

The Assessor also filed a motion to strike certain allegations of the petition on the grounds they were irrelevant and/or argumentative, and to strike Bennett’s request for attorney fees on the ground he was acting in propria persona.

II.

Bennett’s First Amended Petition for Writ of Mandate.

Bennett filed a first amended petition for writ of mandate in which he alleged the following: (1) Bennett, a practicing certified public accountant, resides in Orange County and pays property taxes; (2) on January 31, 2005, the Assessor issued an escape assessment on a parcel of real property located in Fullerton (parcel 10); (3) legal title of parcel 10 was held in the name of Bennett’s clients, James S. Phelps and John W. Phelps as trustees of the John Wilson Phelps Trust (Phelps Trust); (4) “[s]eeking an explanation of the escape assessment on parcel 10 [Bennett] contacted the Orange County Assessor’s office”; (5) deputy assessor Brian Donovan informed Bennett the reassessment was triggered by the death of trust beneficiary Wilson Phelps on April 16, 2002, and further stated the Assessor “always reassesses trust real property on the death of a trust beneficiary”; (6) Bennett told Donovan that neither Wilson Phelps nor any surviving trust beneficiary owned a legally recognized or enforceable present interest in parcel 10 or possessed the beneficial use of parcel 10, and further stated “the value of the respective beneficiaries’ interest in the land and improvements on parcel 10 was not substantially equal to the value of the fee interest” within the meaning of section 60; (7) Donovan told Bennett the Assessor “does not recognize the exemption provided by [section] 60” and refused to reverse the escape assessment on the parcel; (8) as the Phelps Trust’s agent, Bennett filed an application challenging the legality of the Assessor’s reassessment of parcel 10; (9) Bennett also sent the Assessor a request for a ruling setting forth the Assessor’s “legal justification for denying the Phelps Trust the exemption provided by [section] 60”; (10) the deputy assessors with whom Bennett communicated maintained section 60 was superseded or invalidated by legal authority and cited legal authorities to him; (11) Bennett was told “when legal title to real property is held in the name of the trustee of an irrevocable trust, the Orange County Assessor always reassesses that real property each time a trust beneficiary dies, regardless whether the trust real property is exempt from reassessment by [section] 60”; (12) in 2006, the Orange County Assessment Appeals Board heard Bennett’s application challenging the reassessment of parcel 10 as well as two other parcels to which the Phelps Trust trustees hold legal title; (13) the assessment appeals board “agreed with the Phelps” and ordered the Assessor to reverse the escape assessment on parcel 10; (14) in 2007, the Assessor complied with the board’s order and reversed the escape assessment on parcel 10 and refunded the related property taxes; (15) in January 2007, Bennett “served a formal request” on the Assessor, asking him “to affirmatively confirm in writing that the exemption provided by [section] 60 remains valid”; and (16) after Bennett failed to receive a response from the Assessor, he filed his original petition for writ of mandate.

Bennett asserted five causes of action in the first amended petition as follows: (1) “I ask this court to rule that the exemption from reassessment of real property provided by Revenue & Taxation Code Section 60 has not been superseded or otherwise invalidated by other legal authority”; (2) “I ask this court to rule that real property held in trust is reassessable upon the death of a trust beneficiary if, and only if, each of the three conditions in Revenue & Taxation Code Section 60 is satisfied”; (3) “I ask this court to order the Orange County Assessor to first make a determination that each of the three conditions in Revenue & Taxation Code Section 60 is satisfied before he reassesses real property”; (4) “I ask this court to order the Orange County Assessor to reconsider escape assessments he has issued where one or more of the three conditions in Revenue & Taxation Code Section 60 may not have been satisfied at the time of transfer”; and (5) “I ask this court to order the Orange County Assessor to reverse escape assessments he has issued where, upon reconsideration, he is unable to make a determination that each [of] the three conditions in Revenue & Taxation Code Section 60 was satisfied at the time of transfer.”

III.

Trial Court Sustains Assessor’s Demurrer Without Leave to Amend and Denies Bennett’s Motion for Reconsideration; Bennett Appeals.

The Assessor filed a demurrer to the first amended petition on the grounds, inter alia, that (1) the petition did not show Bennett has a beneficial interest in having the duty he perceives is owed to him performed; and (2) the statute upon which Bennett based his case does not create a mandatory duty on the part of the Assessor.

The Assessor also filed a motion to strike certain allegations from the first amended petition on the grounds they were irrelevant, argumentative, and/or conclusory, as well as Bennett’s prayer for attorney fees on the ground Bennett was acting in propria persona.

At the hearing on the demurrer, the trial court sustained the Assessor’s demurrer to the first amended petition without leave to amend after the following discussion:

“The Court: . . . You’re asking the court to advise on the law, to compel respondent, assessor, to act where no duty to act is shown, actually haven’t shown any duty on their part to act. You also want—you failed to plead either the existence of a mandatory duty under the statute or to plead facts demonstrating beneficial interest in having any duty performed. You’re essentially asking the court to rule on your petition. The law is right; on its interpretation it’s wrong. The black letter of the law in California, the court does not issue advisory opinions.

“Although construction and validity of a statute or ordinances are a proper subject of declaratory relief, the fundamental basis of declaratory relief, the existence of actual present controversy, doesn’t appear to exist in this case. So you may be heard in that regard, but that’s my tentative and my tentative is to sustain the demurrer without leave to amend.

“Mr. Bennett: What I’m really seeking, eventually, is [a] published Court of Appeal opinion on that very point. I understand the court’s point of view, and I don’t object to the court sustaining the demurrer without leave to amend.”

On October 5, 2007, Bennett filed a motion for reconsideration of the court’s ruling sustaining the Assessor’s demurrer in light of “new case law,” namely, Steinhart v. County of Los Angeles (2007) 155 Cal.App.4th 1082, review granted December 12, 2007, S158007 (Steinhart), in which an appellate court interpreted section 60.

The trial court denied Bennett’s motion for reconsideration, stating:

“When it’s refused in whole or in part, or granted, or granted conditionally, or on terms any party affected by the order may within ten days of service upon the party of written notice of entry of the order based on new or different facts, circumstances or law, make application to the same court or court that made the order to reconsider the matter and modify, remand or revoke the prior order.

“Prior to making the application, it must state by affidavit what application was made before, when, and to what judge, what order or decisions were made and what new or different facts, circumstances or law are claimed to be shown.

“The motion is technically deficient because it’s missing the declaration that’s required by that provision to begin with.

“But at any rate, you’re claiming that this new law under Steinhart warrants reconsideration to the court’s sustaining your demurrer for your first amended complaint without leave to amend; and I simply disagree.

“It was sustained basically [because] you’re seeking an advisory opinion from the court on how the respondent assessor should interpret Revenue and Taxation Code section 60, so that you can advise tax clients; you also want the court to vacate prior assessments.

Steinhart is new law in that it was published five days before the hearing in this case, and it wasn’t considered by the court or the parties.

“But as you claim, it does not have anything to do with this case other than the fact that Revenue and Taxation Code [section] 60 was involved. Rather, the case involved a complaint by a taxpayer, who acquired the life estate of real property upon the death of her sister; and the question is whether a change in ownership that triggered a reassessment.

“The taxpayer sought recovery of real estate taxes paid and declaratory relief. And the defendant county demurred generally, arguing that the taxpayer had not exhausted her administrative remedies and that she was precluded under Revenue and Taxation Code section 60, from alleging no change in ownership occurred. The appellate court reversed and remanded, rejecting both arguments.

“Because Steinhart is not applicable to the issues presented in this case, there[ are] no grounds for reconsideration . . . [of] my previous ruling.

“So I’m going to deny your motion for reconsideration. So that’s the ruling.” (Italics added.)

Bennett appealed from the judgment entered in favor of the Assessor on all causes of action.

DISCUSSION

I.

Standard of Review

“‘“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]’” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.) “‘On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, “i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.” [Citation.]’” (Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1264.) The sufficiency of a petition for writ of mandate can be tested by demurrer. (Hilton v. Board of Supervisors (1970) 7 Cal.App.3d 708, 713.)

II.

General Legal Principles Applicable to Writ of Mandate

“A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” (Code Civ. Proc., § 1085, subd. (a).) Code of Civil Procedure section 1086 provides: “The writ must be issued in all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law. It must be issued upon the verified petition of the party beneficially interested.” The California Supreme Court has stated, “[i]n order to obtain writ relief, a party must establish ‘“(1) A clear, present and usually ministerial duty on the part of the respondent . . .; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty.”’” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 868.)

III.

The Trial Court Did Not Err by Sustaining the Demurrer Because Bennett Failed to Allege a Basis for Writ of Mandate Relief

The first amended petition for writ of mandate did not allege a “clear, present and usually ministerial duty” on the part of the Assessor which Bennett sought to compel. Bennett’s first and second causes of action sought an advisory opinion on two legal issues: (1) whether section 60 has been superseded or otherwise invalidated; and (2) whether the three conditions set forth in section 60 must be satisfied before real property held in trust may be reassessed upon the death of a trust beneficiary. (Salazar v. Eastin (1995) 9 Cal.4th 836, 860 [“‘The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court’”].) Neither cause of action sought to compel the Assessor to perform any legal duty and thus each failed to establish a proper basis for the trial court to issue a writ.

Bennett’s third cause of action sought a writ compelling the Assessor “to first make a determination that each of the three conditions in Revenue & Taxation Code Section 60 is satisfied before he reassesses real property.” Section 60 contains the definition for the phrase “change in ownership” to mean “a transfer of a present interest in real property, including the beneficial use thereof, the value of which is substantially equal to the value of the fee interest.” Section 60 does not contain a “clear, present and usually ministerial duty” that the Assessor must perform.

In his fourth and fifth causes of action, Bennett sought a writ to compel the Assessor to reconsider escape assessments he has already issued, in light of Bennett’s interpretation of section 60, and then further compel the Assessor to reverse those escape assessments which were issued when a change in ownership as defined by section 60 did not occur. But the first amended petition did not allege any basis for a duty on the part of the Assessor to review past assessments and then reverse those assessments which did not involve a change in ownership of property as defined in section 60.

As to the fourth and fifth causes of action, the first amended petition was also devoid of any allegations that Bennett has standing to seek a writ of mandate to compel the Assessor to review past escape assessments. “To have standing to seek a writ of mandate, a party must be ‘beneficially interested’ [citation], i.e., have ‘some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.’” (Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361-362.) If a petition for writ of mandate reveals the petitioner “lacks the right or standing to sue,” the petition is vulnerable to general demurrer on the ground it fails to state a cause of action. (Braude v. City of Los Angeles (1990) 226 Cal.App.3d 83, 87.)

An exception to the beneficial interest standing requirement may be made “‘“where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty.”’” (Green v. Obledo (1981) 29 Cal.3d 126, 144.) The first amended petition, however, did not allege facts showing how the right to compel the Assessor to review past escape assessments and fix those which were done improperly is one of public right sufficient to dispense with the standing requirement to seek mandamus. (Ibid. [“It is true that ordinarily the writ of mandate will be issued only to persons who are ‘beneficially interested’”].) Bennett has not cited any legal authority supporting his argument the first amended petition showed the public right exception to the general standing requirements for writs of mandate applied here.

The first amended petition did not allege Bennett owns any property that was subject to an improper assessment. The petition did not even allege an assessment was improperly made and not reversed as to property owned by any of Bennett’s clients. The background section of the petition alleged that real property owned by one of his clients, the Phelps Trust, was improperly reassessed. Even assuming Bennett had standing to seek a writ of mandate on behalf of his client, the petition further alleged the Orange County Assessment Appeals Board ordered the Assessor to reverse the escape assessment on the Phelps Trust’s property and the Assessor complied with that order.

Unlike the original petition for writ of mandate, the first amended petition did not expressly state that Bennett also sought to compel the Assessor to respond to Bennett’s request for a written ruling on the Assessor’s interpretation of section 60 under Revenue and Taxation Code section 5909. Section 5909 does not impose upon the Assessor a mandatory duty to respond to a request for a written ruling. Section 5909, subdivision (a) provides in part: “County assessors may respond to a taxpayer’s written request for a written ruling as to property tax consequences of an actual or planned particular transaction, or as to the property taxes liability of a specified property.” (Italics added.) The first amended petition alleged Bennett’s request for a ruling did not seek information on the property tax consequences of an actual or planned particular transaction. Instead, Bennett sought a ruling of general applicability regarding section 60 and its interplay with real property owned by a trust.

The first amended petition alleged Bennett “served a formal request on the Orange County Assessor . . . ask[ing] the Assessor to affirmatively confirm in writing that the exemption provided by [section] 60 remains valid. In particular [he] focused on real property held in the name of a trustee. [He] asked the Assessor to confirm in writing that the following statement of current law is correct: [¶] When a trustee holds legal title to real property in Orange County, and one of the trust beneficiaries dies, the trustee must report his or her death to the Orange County Assessor under Revenue & Taxation Code Section 480 if, and only if, each of the following conditions is satisfied: [¶] 1. The death of the beneficiary causes a transfer of a legally recognized present interest in both the land and improvements[.] [¶] 2. The death of the beneficiary causes a transfer of full beneficial use of the land and improvements. [¶] 3. If conditions 1 and 2 are both met, the value of the transferred legal and beneficial interest is at least 80% of the fee value of the land and improvements.” Bennett alleged, “[f]ollowing my unsuccessful attempts to obtain any response from the County Assessor, I filed my original writ in this action.”

Because Bennett failed to allege a basis for writ relief in the first amended petition for writ of mandate, the trial court did not err by sustaining the Assessor’s demurrer.

IV.

The Trial Court Did Not Err by Sustaining Bennett’s Demurrer Without Leave to Amend.

When a demurrer is sustained without leave to amend, “we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. [Citations.] The burden of proving such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Bennett does not argue the trial court should have granted him leave to amend the first amended petition for writ of mandate, and he does not otherwise argue there is a reasonable possibility the defects in the pleading of his first amended petition can be cured by amendment. We therefore conclude the trial court did not abuse its discretion by sustaining without leave to amend the Assessor’s demurrer to the first amended petition for writ of mandate.

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

WE CONCUR: SILLS, P. J., ARONSON, J.


Summaries of

Bennett v. Guillory

California Court of Appeals, Fourth District, Third Division
Jul 10, 2008
No. G039651 (Cal. Ct. App. Jul. 10, 2008)
Case details for

Bennett v. Guillory

Case Details

Full title:STEPHEN H. BENNETT, Plaintiff and Appellant, v. WEBSTER GUILLORY, as…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jul 10, 2008

Citations

No. G039651 (Cal. Ct. App. Jul. 10, 2008)